Edwards v The Queen

[1993] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry	No Bl4 of 1993

Brisbane

B e t w e e n -

TRAVIS ALLAN EDWARDS

Appellant

and

THE QUEEN

Respondent

BRENNAN ACJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Edwards(3) 53 29/6/93

AT BRISBANE ON TUESDAY. 29 JUNE 1993. AT 10.07 AM

(Continued from 28/6/93)

Copyright in the High Court of Australia

BRENNAN ACJ: Yes, Mr Byrne?

MR BYRNE:  Thank you, Your Honour. May the Court please, if

I may begin with replying to the inquiry made by

Your Honour Justice Deane and inform Your Honour

and the Court as to the current situation regarding

transport of prisoners. We sought instructions and

we are informed that in 1989 - that is at the time

of this incident - the Queensland Corrective

Services Commission did not have its own

transportation section internally and following the

recommendations of the Kennedy Report in 1979 the

Brisbane correctional facility was to be closed.

This necessitated the movement of prisoners to

northern facilities by the commission.

In order to achieve this, the commission

rented transportation vans: in the present case,

from the New South Wales Commission. It was one of

these vehicles in which the complainant and the

appellant were travelling at the time of the

commission of these offences. I am informed that

the vehicle was equipped with surveillance cameras

in the rear to enable supervision to take place,

but I am also informed that those cameras were not

in operation at the time.

Following this incident and a number of

others, a review was commissioned by the commission

by Mr Boddice, of counsel, in Brisbane.	He
produced a report which made various

recommendations and which have since been adopted

by the Queensland Commission. The present case

received a mention in that report with Mr Bodd. ·e

being highly critical of the placement of the

complainant in that van with other prisoners, and

also the transport conditions. That van or vans of

its type are no longer used for transportation

purposes.

Further, the commission now has its own

transport unit which is responsible for the
relocation of prisoners.	The vehicles carry a

maximum of 10 prisoners in groups of five. Perspex

shields are in place between the prisoners and

escort to enable constant surveillance and

instructions are that if there is any incident, the

vehicles are stopped and the matter investigated.

Package meals provided to prisoners be prior to departure and the escorts stop at Maryborough

for an hour and also Mackay, an hour. Prisoners

are also able to use the facilities at refueling

stations en route. Those are our instructions, if

the Court pleases, as to the current situation.

Edwards(3) 54 29/6/93

DEANE J: Thank you, Mr Byrne.

MR BYRNE:  Your Honours, if I may then turn to what we

understand the central submission of our opponents

to be; that submission being that the standard of

proof for the elements for elevating a lie to

corroboration is beyond reasonable doubt. Our

submission simply is that that is flawed both

legally and logically.

If I can deal with the legal position. Only

two cases provide for such a standard. They are

Evans in South Australia, and Reg v Heyde in New

South Wales. In summary, both of those decisions

rely upon an interpretation of this honourable

Court's decision in Chamberlain v Reg; such

interpretation having been explained subsequently
in Shepherd v Reg. In short, the interpretation of

Chamberlain relied upon in Evans in South Australia and Heyde in New South Wales is now no longer

correct.

That was recognized firstly, on our research,

by the Court of Criminal Appeal in Tasmania in a

case of Jeffrey, (1991) 60 A Crim R 384, and at

page 394, at the bottom of the page, Justice Cox,

with whom the other two members of the Court of

Criminal Appeal agreed, said this:

However, in my respectful opinion the

decision of the High Court in Shepherd cast a

different complexion on the pronouncements to

which I have referred concerning the standard

of proof required and demonstrates that a lie

of the kind in question, even though not

proved beyond reasonable doubt to have

emanated from a consciousness of guilt, may

still be pressed in aid of the Crown case and

given such weight as the jury sees fit to give

it having regard to the degree of probability
they find there is that it was told because of

a consciousness of guilt. At the end of the

day, having regard to the possibility of other

reasonable explanations for the lie, they may
entertain a reasonable doubt about the fact of
guilt, but the mere existence of such a

possibility does not necessarily create a

reasonable doubt in respect of the ultimate
question.

We would respectfully submit that that is a correct

approach to the standard of proof.
The error which we say was manifested in the decisions of Evans and Heyde, we submit, also has
been recognized as such in New South Wales by the

Court of Criminal Appeal in the case of Reg v

Edwards(3) 55 29/6/93

Meskers, unreported, 60340 of 1990, in particular at page 40 of that unreported decision, in the

judgment of Mr Justice Wood, at about half-way down

the page this is said:

In my view, the directions given were entirely

sufficient and it was not necessary for

his Honour to have added a requirement that

each of the five elements, or even the two
elements which became the focus of the

submission on appeal, had to be established

beyond reasonable doubt.

His Honour goes on to state that in his opinion the

contrary interpretation in Heyde was based on an

erroneous interpretation or a now perceived

erroneous interpretation of Chamberlain.

Again, we submit that that is now a

recognition of the correct approach to lies as

corroboration or, at least, the standard of proof

so far as lies as corroboration is concerned.

BRENNAN ACJ:	Why is there any question of standard of proof involved in this at all? It is a question of what
is capable of being regarded by the jury as corroboration, is it not? It is not a question of
a fundamental fact from which an inference is to be
drawn.
MR BYRNE:	The ·standard of proof does not seem to have

arisen anywhere prior to Evans - the case of Reg v

Evans.

BRENNAN ACJ:  I just do not understand the notion.

MR BYRNE:  No. It seems to have been - rather than a

standard of proof, there seem to be tests or

threshold points or preconditions which a jury

would bear in mind in deciding whether it reached a

corroborative state. But standard of proof seems,

with respect, to be a somewhat foreign concept to

introduce in preliminary steps.

BRENNAN ACJ: Are you contending for the correctness of the

judgments that you have just been citing in terms

of the applicability of a standard of proof or not?

MR BYRNE:	We submit, Your Honour, that the error which has been made in some intermediate appellate courts,
that the test is beyond reasonable doubt, is that
is an error.  we submit, secondly, that these
matters are really preconditions of which a jury
should be directed that they need to be satisfied
of and that is as far as it should be taken.

Edwards(3) 56 29/6/93

BRENNAN ACJ:  Do you say that proof on the balance of

probabilities has any role to play?

MR BYRNE:  That is a convenient way of expressing it,

Your Honour. Whether the jury is directed in those

terms or not is another question. The jury simply

have to be satisfied that, for example, the

consciousness of guilt is something from which the

lie emanates. That does not have to be done beyond

reasonable doubt, we would submit, but it is a

convenient test by which a jury can eliminate other

possible explanations for the telling of that lie.

So, if they are satisfied that an explanation is

the consciousness of guilt, to use that phrase for

the present time, then that is sufficient.

BRENNAN ACJ: Yes.

DEANE J: Sufficient for what?

MR BYRNE:  Sufficient to enable the jury to use that piece of evidence for corroboration.

McHUGH J: If you introduce the concept of consciousness of

guilty as a necessary condition for the use of lies

as corroboration, you do get yourself into this

dilemma, do you not, that the jury is satisfied on

the balance of probabilities that he lied because

he has got a consciousness of guilt. Then having

established that fact, it must necessarily follow

almost, must it not, that they find him guilty?

MR BYRNE:  Your Honour, if I can answer that in two ways:

if the test is as propounded by our opponents, then

the circularity of the argument is manifest, that

is, the jury could never use items such as this as

corroborative evidence because they establish the
guilty beyond reasonable doubt. If there is a
lesser standard, be it balance of probabilities or

satisfaction or however it is phrased, then it is

not necessarily logically inconsistent and we would

submit that it is merely a useful tool by which a

jury can test the applicability of other

explanations for the lie.

McHUGH J:  But why do you have to go so far as to rely on a

consciousness of guilt?

DAWSON J: What is being put to you is that it is a

convenient but a very misleading phrase.

MR BYRNE: That is recognized in a number of the

authorities, Your Honour, yes. But whether one

uses the phrase "consciousness of guilt" or "unable

to give an explanation consistent with

innocence" - - -

Edwards(3) 57 29/6/93

DAWSON J: What does it mean? What does "consciousness of

guilt" mean in this context?

MR BYRNE:  It must mean that the lie is told not for any

innocent explanation. It must mean, Your Honour,

that the jury, to be able to use the lie, are

satisfied that it emanates not from an innocent

explanation but, rather - I balk at using this

phrase, but from some guilty explanation.

DAWSON J: That the accused has attempted to conceal

something which would point to his guilt?

MR BYRNE:  Yes. The phrase is used in a number of different

ways and if I can just refer Your Honours to

passages where this has been discussed, without

reading the passages. The circularity and the

inaccuracy, if you like, of the phrase

"consciousness of guilt" has been discussed in

three places that we could refer Your Honours to.

The first is Reg v Perera, (1982) VR 901, at

page 910. I do not wish to take Your Honours to

that now. Also, in Jeffrey, the Tasmanian case,
there are three discussions of this aspect. They

appear at page 397, page 399 and page 400. Lastly,

in Meskers, Mr Justice Wood, at page 31 of the

unreported decision, deals with the topic of

circularity.

As to how the matter is to be approached by a

jury - going back to that stream if I may - in

England no standard of proof seems to have been

ever discussed in any of the authorities.

Your Honours have been through Lucas yesterday. In

later cases that we have found and refer to,
particularly West, in the outline, the test is only

stated as "satisfied".~ith nothing more.

There also seems, with respect, to be a

confusion in South Australia where Evans is relied

upon by our learned friends. In the later case of

Harris v Reg, (1990) 55 SASR 321, at page 323,

His Honour the Chief Justice said this at about

point 7 on that page:

What was said by the New Zealand Court of

Appeal in R v Toia in relation to New Zealand

can be said with equal truth of South

Australia. I quote the passage.

Now, Your Honours may read that passage but if I

can refer Your Honours to the second paragraph in

particular where this is said:

First, occasionally they are capable of

adding something to the Crown case, whether as

corroboration or simply as strengthening

Edwards(3) 58 29/6/93

evidence. But, as pointed out ..... most lies

are not in that category. For example a false
denial of being at the scene of the crime

often does nothing to help prove that the

accused committed the crime; he may simply

want to avert unjust suspicion. It is only
when a lie is more consistent -

and I emphasize those words -

more consistent with guilt than with

innocence, as when it suggests that the

accused cannot give an innocent explanation,

that it can add anything to the case against

him.

Now, that would seem to be inconsistent with the test laid down in Evans, that "beyond reasonable

doubt" is the appropriate standard. Whilst that is

certainly said in R v Toia - without taking

Your Honours to it - a reading of that case

demonstrates that, in fact, the learned trial judge

in that case had directed beyond reasonable doubt,

and that is let pass by the Court of Appeal in

New Zealand without comment.

To finish the two references in respect to why we say that the criminal standard is inappropriate,

we refer simply - and I can read this passage to

Your Honours. It comes from Doney v Reg, 171 CLR,

at page 211. This sentence:

It is not necessary that corroborative

evidence, standing alone, should establish any

proposition beyond reasonable doubt.

We submit that that is contrary to the primary submission made by our learned friends.

Finally, on this aspect, if I may refer

Your Honours to Shepherd v Reg, (1990) 170 CLR 585.

This is now the well-known statement by Your Honour

of the Court except Your Honour Mr Justice McHugh	Justice Dawson, adopted specifically by all members
who, I believe, adopted it in principle as well.
At about half-way down that page this statement is made:

Of course, it is recognized in Chamberlain

that, if it is necessary for the jury to reach

a conclusion of fact as an indispensable,
intermediate step in the reasoning process

towards an inference of guilt, then that

conclusion must be established beyond

reasonable doubt.

Edwards(3) 59 29/6/93

We submit that where evidence is used as

corroboration, whatever form that corroboration may

take, then to say that the standard is beyond

reasonable doubt both legally and logically

mistakes the use to which the evidence has been

put. Lies, by themselves, in a case such as this
could not by themselves lead to guilt and therefore
they are not by definition an indispensible
intermediate step in the reasoning process towards
the inference of guilt. They are at best

supportive evidence and hence are not required to

be proved on the criminal standard.

Logically, we submit that the argument is

flawed in these ways. As we said briefly before,

if "beyond reasonable doubt" was to be the test,

then the guilt would be established prior to the

examination of the primary evidence in the case,

that is the evidence of the complainant. As was

recognized yesterday in the course of discussion,

particularly by Your Honour Justice Gaudron, that

would be hopelessly circular in that one could

never use the lies or the other corroboration for

the purpose for which they were being tendered.

The lies themselves would be proof of guilt and

they would, if that were the case, fall within the

test in Shepherd but we submit that lies have never

been used in that way.

The circular argument goes away, we submit, if

a lesser standard is applied so that juries are

instructed that they can make use of lies, proved

to a lesser standard, in order to corroborate as

long as they exclude to their satisfaction innocent

explanations, and that is really the discussion in

those three references I gave earlier to

Your Honours.

The next aspect is this: the other criticism,

we understand, that was made yesterday of the

summing up by the trial judge in the present matter

is, the direction concerning motives for lying. As	is that what emerges at page 78 of the record, that
we recall the submission yesterday, it was that the learned trial judge failed to put alternate hypotheses to the jury for the telling of a lie.
That submission flows, we say, from paragraph 6(d)
of the outline of the respondent which states that
a further direction that there is no other
reasonable hypothesis for the telling of the lie
should be given.
The two cases cited for that proposition are Heyde
and Evans and that rests, we say, on the test being beyond reasonable doubt.

Edwards(3) 60 29/6/93

We also submit in the alternative that in the present case His Honour did not just give the one

explanation. The trial was a short one. There

were only four witnesses in all called including

the appellant. The evidence was fresh in the minds

of the jury and His Honour directed them, at page

78, about line 25 and line 26:

the defence say, well, there may well be other

motives for failing to say things in this

Court, and those motives would go back to his

evidence -

Now, that is sufficient, we would submit, to

encompass dobbing other people, being a dog, being

afraid of consequences in prison. His Honour did
not need to spell out specifically all of those
matters.

Finally, on that aspect, if we may: it is not necessary to put alternate hypotheses and, indeed,

can be dangerous in certain circumstances where

there is really only one alternate hypothesis open.

If we may refer Your Honours to, again, the case of Jeffrey, (1990) 60 A Crim R, a Tasmanian

case, and take Your Honours to the judgment of

Mr Justice Cox at page 398 where His Honour dealt

with a similar submission made by Mr Kable in

Tasmania.	The paragraph begins at about point 4 of
the page:

It is submitted that in this case the

learned trial judge should have instanced

common motives for lying -

we would respectfully ·adopt His Honour's approach

to the need for such a direction.

The last aspect I wish to deal with relates to the secondary submission, as we understand it,

yesterday, that if the test was not beyond

reasonable doubt then the appellant would rely upon

the judgment of Mr Justice Derrington in the Court

of Criminal Appeal whereby this lie, if proved, was

incapable of being used as corroboration because of

the competing alternate hypotheses put up.

We would submit that that is, in effect, a

jury question. Here, the question of motive as
recognized by Mr Justice Thomas in his judgment was

squarely placed before the jury. They were

instructed that they would need to be satisfied

that the motive was a consciousness of guilt. The

alternate was put squarely before them and it was a

jury question as to what use they made of that.

Whether or not they were satisfied, we do not know,

Edwards(3) 61 29/6/93

because it was corroboration not independent

evidence of guilt but, we submit, that we are

fortified in it being a jury question in the

situation here where the appellant has specifically

disallowed in evidence the alternate hypothesis.

If I could take Your Honours to page 53 of the

appeal record. This is during cross-examination of

the appellant, at about line 38, the question is

asked:

Do you still say that at no stage over

s.everal hours did you ever see anybody touch

Mr Williams?---No.

Is that the truth or are you simply not

wishing to be a dog?---That is the truth.

He goes on to then open up what was held to be

lies, but he has disavowed there the alternate

theory. Further, at page 54, about line 15 he is

asked:

Why did you not tell us that before that

Wallace pushed Williams?-._-It only come back

to me.

That, we submit, is again a specific rejection

of any other innocent explanation.

GAUDRON J:  Of course he had not been asked that question in

terms, had he?

MR BYRNE:  He had been asked a number of times whether he

had seen any contact or violence, Your Honour,

between other prisoners and the complainant.

GAUDRON J: Is that right? He had been asked earlier, at

page 49, if he had seen any blows struck.

MR BYRNE: Yes.

GAUDRON J:  He had been asked about striking, that is at

page 48. He had admitted that there were things

going on in the van - that he knew that there were

things going on - he had been asked about

striking and blows, and he had acknowledged that he

had heard slaps, but he had never, in fact, been

asked, "Did you see Williams pushed by Wallace?",

or anything like that had he?

MR BYRNE:  But he had made it clear that - well, we submit,

he had made it clear that he had not seen anything

of this sort.

GAUDRON J: What is the best passage for that?

Edwards(3) 62 29/6/93

MR BYRNE:  The best passage, and it is summarized by

Mr Justice Thomas on page 94 of his judgment, for

example:

I looked over once or twice when it stopped.

I shook my head and looked away.

At line 34:

What else?-- That was all I could see.

At line 47:

Every time I would turn around I would just

see Williams crying or something.

So, at no stage along that entire trip did you

actually see any blows struck at all?-- No.

GAUDRON J:  You see earlier it said, "Williams would get

pushed", and the fact that he later says that he

sees Wallace pushing does not seem to be the sort

of thing that is invited by a question about blows

or striking.

MR BYRNE:  I accept Your Honour's point on that. I cannot

do more than point to the evidence.

GAUDRON J:	Yes .
MR BYRNE:	Those are our submissions, if the Court pleases.

BRENNAN ACJ: Yes, thank you, Mr Byrne. Mr Fleming.

MR FLEMING:  We have no reply, Your Honour, except to answer

something that I should have answered yesterday,

of Justice Deane's, and that was the state of the
law early on. His Honour asked me what the state of the law was between consenting adults - I must

say that I was promptly put right by a number of

students who were sitting in the back of the Court

as to the state of law on that. Section 208, went

from being: 

Any person who -

(1)  Has carnal knowledge by anal intercourse
of any person against the order of
nature -

to now being -

Any person who -

(1) Has carnal knowledge by anal intercourse
of any person not an adult -

Edwards(3) 63 29/6/93

So that is what it became in 1990. There wa one

cosmetic change in 1989 but it then became r:.nat.

That seems to be the state of the law.	Thank you,
Your Honour.

BRENNAN ACJ:  Thank you, Mr Fleming. The Court will

consider its judgment on this matter.

AT 10.38 AM THE MATTER WAS ADJOURNED SINE DIE

Edwards(3) 64 29/6/93